Decency, Due Care, and Lawyering in the 'War on Terror'

25 Pages Posted: 27 Mar 2007  

David McGowan

University of San Diego School of Law


This essay considers recent controversy regarding a memorandum written by John Yoo and Robert Delahunty when they worked for the Justice Department's Office of Legal Counsel. Scholars have claimed the memorandum (the YDM) was incompetently done and, therefore, that Yoo and Delahunty bear moral responsibility for the abuse of persons detained at Guantanamo Bay, Cuba and in the Abu Ghraib prison in Iraq.

I argue that this criticism misconceives the relationship between competence and ethics. Competent, professional conduct may be indecent, and appeals to decency say nothing about (and do not depend on) competence. I illustrate this point by examining in detail criticism of the YDM as incompetent. I conclude that the criticism is unsound. I also consider whether it may be criticized on grounds of decency even though it is competent. I argue that such criticisms must be made with care, so they do not violate the standards they seek to uphold, and that the facts disclosed to date do not justify such criticism.

Suggested Citation

McGowan, David, Decency, Due Care, and Lawyering in the 'War on Terror'. San Diego Legal Studies Paper No. 07-96. Available at SSRN: or

David McGowan (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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